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Rutledge: The EPA’s Proposed WOTUS Rule is ‘Complicated, Overreaching and Infringes on States’ Rights’


March 24, 2015

In testimony before the Senate Agriculture Committee, Attorney General Rutledge says, ‘My office will pursue all legal challenges necessary to prevent an unlawful rule from impacting the State of Arkansas.’

WASHINGTON, D.C. – Arkansas Attorney General Leslie Rutledge today appeared before the U.S. Senate Committee on Agriculture, Nutrition and Forestry to offer testimony and respond to member’s questions on the Environmental Protection Agency’s (EPA) “waters of the United States” (WOTUS) proposed rule.

“WOTUS expands the Clean Water Act beyond the intent of Congress and adds greater confusion and uncertainty for the agriculture community. As the first conservationists protecting the land and water, farmers and ranchers want to follow the law, but this proposal simply goes too far. My office has urged the agencies to withdraw the rule and will pursue all legal challenges necessary to prevent an unlawful rule from impacting the State of Arkansas,” Rutledge said.

A copy of Rutledge’s written testimony is available here.

Rutledge’s remarks are below, as prepared for delivery:

Good Morning, Chairman Roberts, Ranking Member Stabenow, members of the Committee. I am Leslie Rutledge, Attorney General of Arkansas. It is an honor to appear before this committee that includes my own Senator John Boozman. As Arkansas’s Chief Legal Officer, I wish to raise concerns with the proposed rule to amend the definition of “waters of the United States” under the Clean Water Act, and the practical effects this unlawful expansion of federal jurisdiction will have on the Delta farm region in east Arkansas and the timber industries of the southwest. I grew up on a cattle farm near Batesville close to the White River, and understand the impact this proposed rule would have on agriculture.

The Clean Water Act achieves its regulatory goals through jurisdiction over “navigable waters,” which it defines as “waters of the U.S.” The EPA and the Corps of Engineers have attempted to define and interpret “waters of the U.S.” through regulation. Often, the agencies’ interpretation was applied too broadly and was struck down by the U.S. Supreme Court.

Recently, in the Rapanos case, a test emerged that requires the water or wetland in question to possess a “significant nexus,” or connection, to traditionally navigable waters. The agencies assert that the proposed rule is necessary to clarify the test. But nothing in the proposed rule offers clarity. Instead, it is complicated, overreaching and infringes on states’ rights.

First, the proposed definition of “tributary” goes beyond the “significant nexus” test. In Rapanos, Justice Kennedy stated that the Clean Water Act would not apply to drains, ditches, and streams remote from any navigable water and carrying only minor water volumes toward it. However, the agencies expand the definition of tributary to include waters that contribute flow whether directly or through another source.

Even a trickle or roadside ditch can be characterized as “flowing water.” An irrigation canal running through farmland to a local creek could be covered under the proposed rule in direct contradiction to Kennedy’s holding.

Second, the proposed “case-specific” determination of what qualifies a “significant nexus” is vague and ambiguous causing confusion and extra costs for states and business owners. The Supreme Court has stated that administrative rules cannot be so vague that they fail to provide a reasonable opportunity to understand what is prohibited.

The vague terms used in the proposed rule would confuse a “reasonable” person. Farmers and business owners should not have to wait until faced with a penalty to learn that the stream or wetland on their property now falls under the Clean Water Act. Regardless of size, no farm or ranch can operate under such conditions.

At the same time as this rule was proposed, the agencies released an “interpretive rule” to clarify “normal farming practices.” The Delta Region is home to advanced cutting-edge farming technologies that are not considered “normal” in other parts of the country, but provide benefits to our farmers, and the environment through efficient use of water and fertilizer. Although the rule was withdrawn, it is an example of the EPA attempting to arbitrarily expand the Act without public notice and comment.

The scope of the proposed rule will have negative impacts on Arkansas beyond the legal arguments. In 2012, agriculture added over $20 billion to the Arkansas economy. That’s eighteen (18) cents of every dollar of Value Added, one in every six jobs. Arkansas is first in rice production, third in cotton, fifth in timber and tenth in soybeans and grain. Clearly, overreaching administrative rules would put this sector of our economy in jeopardy.

As the first conservationists protecting the land and water, farmers and ranchers want to follow the law. Restrictive and confusing administrative rules will inhibit their ability to farm and drive future generations out of agriculture; ultimately impacting the food supply of all Americans. My office has urged the agencies to withdraw the rule and will pursue all legal challenges necessary to prevent an unlawful rule from impacting the State of Arkansas.

Thank you again Mr. Chairman for the opportunity to appear before you today. This concludes my testimony, and I am happy to answer any questions you or the other members of the Committee may have.

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